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How the Vernon Hershberger Food Licensing Trial Could Shift Views on Food Safety

Opinion

On its face, the upcoming trial of Vernon Hershberger, which starts today, is about food and dairy licensing and the Wisconsin farmer’s refusal to seek out certain permits. Hershberger is accused of four criminal misdemeanors. The first three include failing to have a retail food establishment license, operating a dairy farm as a milk producer without a license, and operating a dairy plant without a license. The fourth accusation is that Hershberger violated a holding order from the Wisconsin Department of Agriculture, Trade, and Consumer Protection (DATCP) in June 2010, when he cut the agency tape shuttering his farm store, and resumed serving his food club members.

While some of Hershberger’s supporters have wanted to see the trial turned into a debate over raw milk, the judge in the case, Guy Reynolds, reaffirmed the narrow focus on regulation when he ruled during a pretrial hearing Tuesday that issues related to raw milk can’t be introduced by either the prosecution or defense.

The technical legalities of the case, however, fail to convey the case’s national political importance. Other cases similar to Hershberger’s have sprouted around the country, from Maine to California, where owners of small farms are selling meat, raw dairy products, and other staples directly to consumers in search of wholesome food. The controversy, and attendant legal problems, stem from the fact that the farmers are increasingly selling their food via private contracts, outside the regulatory system of state and local licenses and inspections that govern public food sales.

Federal and state regulators have responded by seeking legal sanctions against farmers in Maine, Pennsylvania, Minnesota, and California, as well as in Wisconsin. These sanctions include injunctions, fines, and even possible prison time. Food sold by unlicensed and uninspected food is potentially dangerous, say the regulators, since it can carry pathogens like Salmonella, Campylobacter, and E.coli O157:H7, leading to mild or even serious illness.

While these cases are testing the limits of food regulation, they raise deeper and more fundamental questions. Why would hard-working, normally law-abiding farmers be teaming with educated urban and suburban consumers to flaunt licensing and permitting regulations and statutes that have held sway for decades? Why would parents, who want only the best for their children, be seeking out food that regulators say could be dangerous?

Indeed, if you talk to individuals who belong to Hershberger’s food club, many of them from the Madison, WI, area, they talk about food choices and health rather than permits and licenses. Jenny DeLoney, a Madison, WI, mother of three young children., says she buys food from Hershberger because she wants food from animals that are treated humanely, allowed to roam on the pasture. “I really want food that is full of nutrients and the animals to be happy and content.”

Jennifer Bell, a Madison mother of two children, has been buying eggs, beef, honey, and raw milk from Hershberger for the last three years. “I’ve seen a lot of improvements in my digestive system” during that time, she says. Her son’s stomachaches have disappeared as well. She believes Hershberger’s farm-raised food is more wholesome and nutritious than mass-produced food in the supermarkets, and that her and her family’s health improvements are testimony to that reality.

Another member, Joy Martinson of Mt. Horeb, says the fact that her health has improved has reinforced her sense that she should have a choice in her food:  “I am an informed consumer and I choose to obtain healthy food directly from the farmer without government intervention.”

Hershberger himself talks about “the fundamental right of farmers and consumers to engage in peaceful, private, mutually consenting agreements for food.”

These individuals are clearly interpreting “health” and “safety” differently than the regulators. The consumers have seen such things as videos of downer cows being prodded into slaughterhouses and chickens so crammed into coops they can barely breathe. They have seen the statistics showing that eight percent of children today have allergies and nine percent have asthma. To these individuals, safety is much more than the single-minded focus regulators place on pathogens.  To many of them, who are parents, safety means not only food free of pathogens, but food free of pesticides, antibiotic residues, genetically modified (GMO) ingredients, and excessive processing.

Some consumers are going further than claiming contract rights—they are pushing their towns and cities to legitimize private farmer-consumer arrangements. In Maine, residents of nine coastal towns have convinced town meetings to pass so-called “food sovereignty” ordinances that legalize unregulated food sales; towns in other states, including Massachusetts and Vermont, have passed similar ordinances.

The new legal offensive hasn’t gone over well with regulators. Maine’s Department of Agriculture filed suit against a two-cow farmer, Dan Brown, in one of the food-sovereignty towns, Blue Hill, seeking fines and, in effect, to invalidate the ordinances. A state judge in late April sided with the state, issuing an injunction barring Brown from continuing his unregulated food sales, and in effect invalidating the Blue Hill ordinance.  Brown is planning an appeal.

At its heart, this is a struggle over a steady erosion of confidence in the integrity of our industrial food system, which has been hit by disturbing disclosures seemingly on a weekly basis. Members of Congress and the U.S. Centers for Disease Control have in recent weeks escalated warnings about the growing danger of antibiotic-resistant pathogens emerging from farm animals, which consume about 80 per cent of all antibiotics in the U.S. The Atlantic reported last summer that medical specialists are seeing a spike in women with urinary tract infections caused by antibiotic-resistant bacteria, likely transmitted by chicken meat.  Voters in a number of states have mobilized to push for laws requiring labeling of foods for the presence of GMO ingredients.

Eroding confidence in the food system is no small matter. It threatens large corporations in serious ways if long-established food brands come under prolonged and severe public questioning. It threatens economic performance if foods deemed “safe” become scarcer, and thus more expensive. And it is potentially explosive politically if too many people lose confidence in the competence and expertise of the food regulators, and encourages folks to seek private solutions.

The battle seems almost certain to intensify, as more farmers like Hershberger hook up with consumers for private food sales and regulators hunker down to deter the end run around existing regulatory protocols. No matter what the jury’s decision in this case, we will hopefully see the emergence of a new broader view and discussion about the meaning of food safety.

© Food Safety News
  • Carlo Silvestr

    As consumers we must have the right to choose what we want to eat and to know what’s those products contain. Government and Big Ag both want to tell us what’s good for us but ultimately we need to make that decision. If we want to consume beef that has pink slime as part of its components, it’s our right but if we don’t want to have pink slime in our beef and are willing to pay more for that privelege, that’s our right too. If we want to consume raw milk, it’s our right, whether it’s good for us or not. If we want to know if a food is GMO, it’s our right regardless of business’ worries that a label stating such would imply that the item is somehow tainted or unfit for consumption. If we want to be vegetarian, it’s our right just as it’s our right to be carnivores. Don’t squelch us just to protect the large food interests and their profits.

    • http://www.facebook.com/missy.bems Missy Bems

      No, it isn’t your right to consume a food that is inherently contaminated. If (when) you get sick from drinking raw milk, your medical costs increase all of our costs. You can pass that pathogenic bacteria on to others. Many parents give their children raw milk. Those kids don’t have a choice in the matter and they suffer disproportionately with hemolytic uremic syndrome and other serious complications. AND, the cost of an investigation into a raw milk outbreak is paid for by taxpayers. That foolish “argument” is only valid if you are living by yourself on an island.

      • RawStuffRI

        You are so right Missy, we need the government to tell us what is safe and what is not. I should not have the right or the choice to be a raw foodist and use natural remedies to keep myself healthy. I should be forced by the government to eat only processed/licensed/industrially-raised “food” because they are pathogen-free (ignoring the fact that what I just described the most nutrient-deficient “food” you can put into your body) and be forced to only take pharmaceuticals when those “foods” make me sick. Yes, I totally agree with you, we need the government to keep us safe. We are totally incapable of making these kinds of decisions ourselves. Pst…

        • aaron

          preach it!! that ‘s right!

      • Matokiya

        So you’re saying that I don’t own my body? Then who does… you… the government? And you say those kids don’t have a choice in what their parents feed them, isn’t this true about all kids though? Sure, there are some challenges and concerns to drinking raw milk, but this is true about meats and vegetables you buy at the grocery store too. Which do you think is harder to track back and contain, a bad batch from a local farmer with a few dozen animals, that you directly engage with, or a large corporation that has dozens of farms with thousands of animals that you have no contact with?

        • http://www.facebook.com/missy.bems Missy Bems

          Can’t you people read? You do not have the right to engage in a behavior so risky that you cost taxpayers money and threaten others with illness.

          • frank culmone

            Seriously? That’s the argument against the consumption of raw milk? Why
            don’t you calculate the health care costs of obesity, diabetes, auto
            immune disorders and heart disease, all of which can be attributed to
            the legal modern American diet. Further, I can buy raw chicken at the
            supermarket, take it home, cook and consume it, right? Why the f*** cant
            I do the same with raw milk? Perhaps I want to buy local and support
            family farms, or perhaps I want to make my own ice creams and custards
            (which are cooked), cheeses and cultured butter with highest quality
            stuff I can find. There is no reason in the realm of public health why I
            shouldn’t be able to do these things and why I should not have easy
            access to a product that is currently in demand.

      • opies99

        Yes HUS is serious and life threatening. So is putting your child into a vehicle traveling 60 miles an hour yet we are allowed to do so. As parents it is our choice and our responsibility to weight the risks and make the decisions we believe best for our families. It is not the governments job to protect us from the miniscule chance of pathogen growth in raw milk. It is the responsibility of the consumer to know their farmer. For us the benefits of raw milk consumption and production far outweigh the risks. And we will continue to do both regardless of our overreaching governments actions.

      • David Gumpert

        Missy, maybe another way of viewing the issue is through a few questions. Does the government have the right to confiscate, and prevent us from ingesting, food we decide is wholesome, nutritious, and health giving? Or, put another way, who owns our bodies? Who decides what food to put in our bodies? Who decides what foods to feed to our children? If you’re saying the government has the final say to all those questions, then I believe the government will find itself fighting with ever more people on this issue.

      • farmber

        Actually Missy, if you’re going to equate bad foods with society’s medical costs — take a look at the HUGE annual costs associated with junk food — while raw milk is a mere statistical blip….

      • Hannah Ring

        I disagree.
        Do you personally know anyone who has had raw milk? Have you ever had it? Do you know anyone who has gotten sick from drinking good raw milk (other then those who are allergic to it)?
        CDC data shows there are about 412 confirmed cases of people getting ill from pasteurized milk each year, while only about 116 illnesses a year are linked to raw milk. Research by Dr. Ted Beals shows that you are about 35,000 times more likely to get sick from other foods than you are from raw milk

        I am the daughter of an organic dairy farmer. I drink milk all the time (sometimes almost a gallon a day). I have never gotten sick from it, nor do I know anyone who has.
        I am an adult now. I choose to drink raw milk. In my opinion, pasteurized milk is disgusting. And pasteurization kills the good in the milk.
        I have a choice.

      • http://www.facebook.com/shawn.sherman.77 Shawn Sherman

        Apply your line of reasoning to the SAD (standard American diet) and then get back to us. The SAD diet is far more expensive on taxpayers than those choosing to eat actual food. Plus if you truly look into the facts concerning raw milk consumption in the US, you’ll find that the fears and concerns that some hold about it are not based in reality but false assumptions. If people are free to eat pop tarts and pastuerized milk how can we not be free to consume raw milk? It’s mind-boggling to me that this is even an issue.

      • madworld

        Missy, if we look at the flip side of your argument, we could say that we ALL pay for the diseases brought on by our industrial food system. We are ALL paying for the obesity epidemic, diabetes, heart disease, etc, etc. People have the right to consume food that is highly processed and 100% unhealthful, and yes we ALL pay the costs for those resulting diseases. Same with cigarettes. And spare me the children argument–save it for when when you see overweight kids eating at McDonalds, or eating Doritos or living in smoking households. Also, raw milk is absolutely NOT inherently contaminated. Wake up–our govt wants us dependent on them and their political donors (ie, overlords) in Big Ag. The persecution of community farmers is about money and control of the food supply–not health.

      • http://www.facebook.com/bkramlich Ben Kramlich

        Missy, your heart is in the right place when it comes to wanting safe food for yourself and your family, which is exactly why people are choosing to consume raw milk. They want the same thing that you do.

        Did you read the article above? I encourage you to look at the facts: Our own Center for Disease control is warning about the escalating amount of diseases due to antibiotic resistant bacteria. Do you know why this is happening? Have you considered that maybe its from the rampant use of antibiotics in our government regulated food system? Have you considered asking why as much as 80% of antibiotics are given to animals in our conventional food system? Do we really need to do that if this food system is “safe”? What do you believe about health? Are animals and people healthy because they take and are given drugs?

        I encourage you to please reread the article and ask yourself what is the greater risk -

        eating food that is mass produced, shipped all over the world, irradiated, chemically altered, overly processed and refined and sanitized, Genetically modified and containing residual pesticides, herbicides, antibiotics, and hormones.

        -or-

        eating fresh (unpasteurized and free of irradiation), whole and minimally processed, living foods produced in a way that ensures nutritional quality and cleanliness are top priorities. The people who produce this food choose to feed it to their families and friends and are happy to show you exactly how it is produced and you can choose whether you want to consume it.

        Which kind of food do you think will increase our healthcare costs?

        • Emily73

          Did you read the CDC’s report on the dangers of raw milk? I encourage you to look at the facts: raw milk is responsible for hundreds of illnesses in this country; most of those seriously injured are children. And you are changing the subject. Antibiotic-resistance has NOTHING to do with raw milk’s inherent danger. Furthermore, the risk from eating processed foods and the risk from consuming raw milk are completely different. You raw milk “advocates” need education in logical reasoning and reading comprehension.

      • Carlo Silvestr

        And why should the government really get involved in an investigation like that? If I, an adult, choose to drink raw milk, I, an adult, choose to accept any and all consequences that come from that. I can’t and shouldn’t expect the government to come save me if I choose, knowingly, to do something that could harm me and the worst possibility comes about. It really irritates me when people expect the government to save them from choices that they knowingly make. I do have an issue with parents choosing to give their children raw milk, No, the children don’t have a choice on that matter and as a parent I certainly wouldn’t give my son that and we never did. But, for me as an adult, it’s my choice! By the way, I don’t drink raw milk. I don’t drink milk period.

      • http://twitter.com/mgrimm3 michael grimm

        p { margin-bottom: 0.08in; }

        Missy Bems, Raw milk is not illegal and
        there is no proof that it can cause illness. Most of the foods we eat
        have been proven to cause illness. Most of the foods we eat, most of
        the things we do, and most of the drugs we take all increase the cost
        of health care.

      • Michelle Gillespie

        Missy, have you ever tested any raw milk or seen studies that show that it is inherently contaminated with dangerous pathogens and will cause disease? Raw milk is not inherently contaminated, and the people that feed it to their children are doing so because they genuinely believe it is the best thing for their child’s health. No one wants to see their kids suffer; if kids were suffering from raw milk, parents wouldn’t be giving it to them. The fact is that raw milk has many positive health benefits for many people, and restricting this food that people use for medicine is oppressive and violates our human rights.

        If you don’t think people should have the right to consume raw milk due to potential medical costs, should they have the right to consume white sugar, white flour, artificial sweeteners, McDonalds, alcohol or tobacco? All of these things are linked to conditions that may increase medical costs.

      • Bret Cramer

        Missy, by your argument, if raw milk is inherently contaminated then consuming food not inspected by federal or state authorities should be illegal, but that’s not the case. As far as I know, in Wisconsin there is no law against actually drinking raw milk. In fact anyone who owns a cow can drink as much of it as they like. What’s being regulated here is the monetary transaction. This should tell you something about where the real concerns of state and federal regulators lie. Another example I think about is the laying hens I keep on my farm. I’m allowed to sell eggs, uninspected and ungraded as long as my customers drive to the farm and buy them here. As soon as I take a carton of those eggs off my farm two miles into town and try to sell them at a farmer’s market I’ve broken the law. Why does the state of Wisconsin not concern itself with the supposed “safety” of these eggs until I bring them into a marketplace where they could compete with regulated eggs? What makes them ok to purchase on the farm and not somewhere else? With other regulated substances, alcohol, cigarettes, firearms which society has determined carry some inherent danger, we impose penalties not just on the seller, but also on the consumer. You can be held accountable to the law if you smoke or drink outside certain parameters of age and situation. With raw milk the government is only penalizing the farmer who sells it outside regulatory reach. It’s not about safety. It’s about keeping the regulatory paper castle in place. Don’t be fooled into thinking that these bureaucrats are all that concerned about your safety. Reading one story about the trial proceedings, we find that one DATCP employee can’t even tell the judge what it is that dairy plants do! There are much bigger players being protected here than the average consumer.

      • aaron

        Missy,

        If I follow your reasoning to your logical conclusion, I should have a vote about, for example what TV you allow you or your children to watch. Let’s imagine your kids watch Sponge Bob. I think that show makes it’s viewers stupid. And society eventually has to pick up the tab for stupid people, right.

        Do I have the right to disallow your kids from become idiots?
        I don’t want anyone’s kids to become idiots, but certainly don’t have the right to control your actions. That want the “free” part of “freedom” means.
        Don’t you dare tell me what I can put in my body.

        • Susan Wey

          Don’t YOU dare eat something contaminated with pathogenic bacteria and waste MY taxpayer dollars on an expensive outbreak investigation! Don’t YOU dare threaten MY family’s health by contracting a communicable disease from raw milk! And don’t YOU dare get sick in a completely preventable way and raise MY medical bills with YOUR expensive illness. The outrage works both ways, dear.

    • http://www.facebook.com/shawn.sherman.77 Shawn Sherman

      Preach it brother Carlos! :)

  • http://www.facebook.com/steve.bixby2 Helicopter Steve Danger Bixby

    Because the government hasn’t made ANY bad decisions,and no agency is susceptible to big business corruption…. (that was all sarcasm by the way) let the people buy it if they want it.

  • http://www.facebook.com/bruce.cullers Bruce Cullers

    Funny, I grew up on a small farm and spent my first 18 years drinking raw milk and I never got sick Missy Beams. Neither did any of my 11 siblings. My dad raised grass fed beef that were never force fed corn or antibiotics.
    I really miss the food, but I am not a farmer! I just hate that its actually difficult to get grass fed meats and they want to make it harder so freaking farming corperations can make a few more bucks.

    • BenJohnson131313

      So? You are committing the logical fallacy of a small sample size. Just because YOU didn’t get sick doesn’t mean others don’t get sick. Tell it to the mother of the child in Washington whose child got HUS from raw milk, lost the use of her kidneys, and suffered strokes.

  • Oginikwe

    The food that is inherently contaminated is industrialized food. Every meat recall we have gone through has had the USDA stamp of approval. When eggs were recalled they were recalled from egg factory farms that were government inspected. Do we need to discuss peanut butter? People turned to raw milk because they saw rBGH as a greater threat not to mention the unsavory idea of drinking milk with any amount of pus in it from the mastitis that rBGH often causes. Consumers understand how the FDA and USDA support big agra at the expense of our health and enforce laws and mete out justice in a two-tiered system geared towards stamping out small farmers while allowing industrial food a pass.

    And, Missy Bems, your argument rings hollow: When children get HUS from meat, who foots the bills? When listeria and salmonella send people to the hospital who foots that bill? Lawsuits often take years and all too often the business just files for bankruptcy. Who pays then? And, these companies impact far more people than small farmers ever can.

    These small farmers are selling the very food they feed to their own families. For some, that’s all the reassurance they need.

  • http://twitter.com/MichaelBulger Michael Bulger

    Thankfully, the choice is not limited to major industrial agriculture vs. unregulated animal products.

    There are plenty of farms, markets, and CSAs, that care about animal welfare and produce food that embodies the values so many are now seeking out. Not surprisingly, these businesses are growing and thriving, even (especially) while operating within the law. That’s fair play and good business.

  • Oginikwe

    You can read what is going on in Hershberger’s trial here:

    On First Day of Hershberger Trial, Lawyers Tangle Over Retailing, As Raw Milk Issue Lurks:
    http://thecompletepatient.com/article/2013/may/21/first-day-hershberger-trial-lawyers-tangle-over-retailing-raw-milk-issue-lurks

  • Monica

    If the DATCP were truly concerned about our health, they would also disallow licenses for selling tobacco and alcohol. (Also Twinkies, Big Macs, Doritoes, and so forth ad nauseum.) This is the DATCP’s bow and scrape to the big dairy industries, who do not wish any competition. Just more corporations buddying up to the government, only on the state level.

    • http://www.facebook.com/people/John-Burton/1518222316 John Burton

      corporate interest AND bureaucratic interests. the folks at datcp spend their lives waiting for their coffee breaks to vest into a pension.

  • aaron

    What Vernon’s being charged with is threatening the Industries which have purchased regulatory monopolies. This case only has to do with raw milk in the abstract.